BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

[This summary does not form part of the decision.]

Morning Report featured an interview with assisted dying campaigner Matt Vickers about recent legislative changes to permit physician-assisted dying in California and the desirability of law reform in New Zealand. The Authority did not uphold a complaint that the interview was unbalanced and inaccurate because it allegedly advocated assisted dying and did not include alternative views on the issue. Both the interviewer and interviewee acknowledged different perspectives on assisted dying and listeners could reasonably be expected to be aware of significant viewpoints on the issue.

Not Upheld: Controversial Issues, Accuracy

Introduction

[1]  Morning Report featured an interview with Matt Vickers, an assisted dying campaigner and the husband of the late Lecretia Seales, about recent legislative changes to permit physician-assisted dying in California and the desirability of law reform in New Zealand.

[2]  Right to Life New Zealand Inc complained that the interview was unbalanced and misleading, as it advocated assisted dying and did not include alternative views on the issue.

[3]  The issue is whether the broadcast breached the controversial issues and accuracy standards as set out in the Radio Code of Broadcasting Practice.

[4]  The item was broadcast on Radio New Zealand National on 7 October 2015. The members of the Authority have listened to a recording of the broadcast complained about and have read the correspondence listed in the Appendix.

Nature of the programme and freedom of expression

[5]  The interview with Mr Vickers formed a short segment (just over four minutes) within RNZ’s Morning Report programme, which is three hours in length. Morning Report is described by RNZ as ‘the most authoritative and comprehensive coverage of local and world events to be found on morning radio’.¹

[6]  The interview in question was introduced as follows:

California has become the fifth US state to allow physician-assisted dying under a bill signed into law yesterday by the Governor Jerry Brown. The bill allows doctors to prescribe medication to end a patient’s life if two doctors agree that the patient only has six months to live and is mentally competent. Earlier this year, Wellington woman Lecretia Seales went to the High Court seeking the choice to receive assistance to die from her GP, before she did die in June. Justice Collins turned down Ms Seales’ request but her husband, Matt Vickers, has continued to campaign to ensure Lecretia’s personal sacrifice wasn’t for nothing, as he puts it. He says it is tremendous news for Californians after there was much doubt the legislation would pass.

[7]  Mr Vickers then commented on the passing of the California bill and gave his opinion that it would make the end of life for many terminally ill Californians, who palliative care cannot help, ‘a lot more comfortable’. The interviewer and Mr Vickers went on to discuss the specific requirements for assisted dying as set out in the California legislation, what exactly Ms Seales was seeking in her own court case and what could be appropriate for New Zealand.

[8]  Mr Vickers then commented on the terms of reference for New Zealand’s Select Committee, which is considering law reform around assisted dying:

I think the terms of reference are a little strange. The terms of reference talk about factors which contribute to the desire to end one’s life – the thing about people who seek assisted dying is they don’t desire to end their life, they don’t want to die, they’re just trying to choose the best available options. If they could cast off the illness and actually not be sick they would choose that first, but what’s actually happened is they’ve found themselves in a situation where they’re having to decide between options around their death and the one option they would like to have, which is some control over the death and access to medication which will give them a quick, painless death if they found themselves in a situation where they were suffering intolerably, and that is really the motivation. It is actually about controlling suffering and deciding how to die, rather than a desire to actually die.

[9]  The interviewer then discussed palliative care with Mr Vickers:

Interviewer: But palliative care is set up as an opposition to that in a way. Presumably that is what the Select Committee is thinking – as opposed to going into palliative care and letting things take their course, some people would choose to die on their own terms.

Mr Vickers: I welcome palliative care and hospice care. I think that they are tremendous, but I also think they’re complementary. I think that palliative care really does help individuals at the end of their life, but as you enter palliative care you don’t know whether you’re going to be one of the lucky ones that is going to be able to go through palliative care and have a comfortable death, or whether you’re going to be one of these people that palliative care can’t help. But I do take issue with the fact that some people claim that palliative care can help everyone. They can try, but palliative care, like medicine, isn’t perfect and to claim it is perfect I think is disingenuous.

[10]  The interviewer concluded the segment saying, ‘That’s Lecretia Seales’ husband, Matt Vickers.’

[11]  Discussion of socially significant and highly debated issues such as assisted dying is an important exercise of the right to freedom of expression – both of the broadcaster to impart ideas and information, and of audiences to receive these ideas and information. This value must be weighed against the level of harm alleged to have been caused by the broadcast, in terms of the underlying objectives of the relevant broadcasting standards.² We may only intervene and restrict the right to free expression where it is justified and reasonable.

Was the item sufficiently balanced?

[12]  The balance standard (Standard 4) states that when controversial issues of public importance are discussed in news, current affairs and factual programmes, broadcasters should make reasonable efforts, or give reasonable opportunities, to present significant points of view either in the same programme or in other programmes within the period of current interest. The standard exists to ensure that competing arguments are presented to enable a viewer to arrive at an informed and reasoned opinion.³

[13]  Right to Life argued the interview did not present alternative views on law reform which would allow assisted dying in New Zealand and felt the item took a perspective which was supportive of this proposed legislation. Right to Life considered that the recent California legislative changes were discussed without acknowledgment of the opposition and contentious nature of the issues. It also argued that the interview failed to provide balance by not recognising that the proposed law changes were ‘totally opposed’ by the disability sector, the pro-life movement, the World Medical Association, the New Zealand Medical Association, Hospice New Zealand and palliative care specialists. Right to Life noted that the broadcaster did not point to any presentation of alternative views during the period of current interest. It considered that on contentious and controversial issues of great social importance, the broadcaster has a particular responsibility to the community to provide balance. Right to Life further submitted that the Authority’s decision in Right to Life New Zealand and Television New Zealand⁴ was relevant, in particular the finding that alternative views to the pro-euthanasia position have not been presented over time as expected.

[14]  RNZ stated that the item was a short four-minute interview with Mr Vickers and did not purport to be an overview of the broader topic of euthanasia; rather, it reported on the recent legislative changes in California and sought Mr Vickers’ (as the widower of Ms Seales) reaction to that change, as well as to the current Select Committee process being undertaken in New Zealand. RNZ argued that because the interview was not an in-depth analysis of the overall topic of euthanasia, the balance standard was not breached on this occasion. It also stated that in any event, the use of ‘devil’s advocate’ questioning which put the position of palliative care supporters to Mr Vickers would have alerted the audience to alternative views. RNZ disagreed that the Authority’s earlier decision was relevant,⁵ as unlike the Seven Sharp item that was the subject of that decision, it did not consider this interview amounted to a wider discussion of the voluntary euthanasia debate and law reform. Rather, it argued the item was a short interview with one person with a clearly identified perspective. RNZ further stated that at no time did the interviewer make a comment to indicate a position on the euthanasia debate, which was what had occurred during the Seven Sharp item.

[15]  A number of criteria must be satisfied before the requirement to present significant alternative viewpoints is triggered. The standard applies only to news, current affairs and factual programmes which discuss a controversial issue of public importance. The subject matter must be an issue ‘of public importance’, it must be ‘controversial’ and it must be ‘discussed’.⁶

[16]  The Authority has typically defined an issue of public importance as something that would have a ‘significant potential impact on, or be of concern to, members of the New Zealand public’.⁷ A controversial issue is one which has topical currency and excites conflicting opinion or about which there has been ongoing public debate.⁸

[17]  We accept that assisted dying is a controversial issue of public importance. While assisted dying and voluntary euthanasia are distinct concepts, they are nonetheless closely related issues and as such we consider our previous decisions finding that voluntary euthanasia is a controversial issue are relevant and applicable.⁹ The question then is whether this particular interview amounted to a ‘discussion’ of the issue of assisted dying.

[18]  The Authority has previously held that items which focus wholly on individual stories and personal experiences do not amount to a ‘discussion’ which trigger the requirement for balancing perspectives.¹⁰ While Mr Vickers was introduced, and the interview was concluded, by way of reference to his relationship to Lecretia Seales, the interview was not solely limited to his personal experience. Ms Seales was only mentioned briefly during the interview, and only then in relation to the exact terms of her court case. The discussion centred around broader issues of recent legislative change in California to permit physician-assisted dying, potential law change in New Zealand, reasons which would support a law change and palliative care. We are therefore satisfied the interview ‘discussed’ the issue of assisted dying.

[19]  Having found the standard was engaged, we also find that the broadcaster made reasonable efforts to present significant points of view on assisted dying and that the interview was sufficiently balanced. Rather than being a strong advocacy piece pushing for the legalisation of assisted dying, this interview discussed the pro-palliative care position at some length. Mr Vickers offered some support for palliative and hospice care, saying he thought they were ‘tremendous’ and complementary to assisted dying, but his own view was that palliative care had limitations and assisted dying could help those individuals that palliative care could not. While the interview was not limited to Mr Vickers’ personal story, it was individual commentary from someone explicitly identified as an assisted dying campaigner with a personal connection to the debate. In this context, audiences would be well-aware of his stance on the issue.

[20]  In addition, the interviewer acknowledged the opposition to attempts to legalise assisted dying, saying there was much doubt the California bill would pass and noting New Zealand has had three bills (on assisted dying or related issues) that have never reached the Select Committee stage. She also used ‘devil’s advocate’ questioning to put the position of palliative care supporters to Mr Vickers, for example pointing out that palliative care is ‘set up as an opposition’ to assisted dying (see paragraph [9] above).

[21]  There are several additional reasons why the interview in question can be distinguished from our previous decision cited in support of the complainant’s argument, concerning an item on Seven Sharp that featured a voluntary euthanasia campaigner.¹¹ We found in that case that the item contained multiple streams of advocacy offered in support of the pro-euthanasia position, namely, the campaigner’s views, the discussion of legislation overseas and the programme presenters’ comments. The campaigner was an active and longstanding advocate and the presenters largely adopted her views without question. Rather than offering any balance to the campaigner’s advocacy, the presenters made such comments as, ‘It’s always been a very compelling argument really, hasn’t it?’, ‘Who are you busy telling me how to run my life or end my life?’ and ‘Surely you’d assume if we had [a vote] right now people would be in favour’.¹² We also found that at the time of broadcast, the presentation of views countering the pro-euthanasia position had not been occurring and it was not straightforward to seek out these alternative perspectives in mainstream media.¹³

[22]  In contrast, as we have noted already, in this instance both the interviewer and Mr Vickers acknowledged other significant viewpoints on assisted dying. The interviewer in no way supported or adopted Mr Vicker’s position, but actually raised the perspective of palliative care supporters. Although both items featured interviews with assisted dying (or voluntary euthanasia) campaigners, Mr Vickers did not present advocacy as strong or one-sided as that presented by the campaigner in the Seven Sharp item; during the interview he was measured, reasonable and discussed other options for end-of-life care such as palliative care.

[23]  We also consider that, in light of the widespread media coverage and national discussion that surrounded Ms Seales’ court case and death in June 2015, listeners could reasonably be expected to be aware of a range of perspectives on assisted dying which lessened the requirement on the broadcaster to present balance on the issue within the item in question. The broadcast in question occurred only a few months afterwards which was within the period of current interest. This can also be distinguished from the Seven Sharp item, which occurred several months prior to the developments regarding Ms Seales.¹⁴

[24]  In our view, items such as the broadcast in question further public debate on the significant issue of assisted dying without being unduly partisan or under-informing audiences. To find the item breached the balance standard could potentially have a chilling effect on freedom of expression and restrict the ability of broadcasters to feature interviews with individuals who take a particular stance on controversial issues. For the above reasons, we are satisfied that the interview was sufficiently balanced and we do not uphold the complaint under Standard 4.

Was the broadcast inaccurate or misleading?

[25]  The accuracy standard (Standard 5) states that broadcasters should make reasonable efforts to ensure that news, current affairs and factual programming is accurate in relation to all material points of fact, and does not mislead. The objective of this standard is to protect audiences from receiving misinformation and thereby being misled.¹⁵

[26]  Right to Life argued the interview misused the word ‘medication’, as ‘medication’ should never be used to include a lethal poison intended to take a life. It considered that the terms ‘facilitated aid in dying’, ‘assisted dying’ and ‘assistance to die’ are misleading and disguise the real intent of what is being proposed which is ‘for a doctor to assist in the suicide or to kill a patient’. Right to Life felt advocates for a law change to allow assisted dying use words ‘to make lies acceptable and murder respectable’. It disagreed with Mr Vickers’ statement that palliative care and euthanasia are complementary, and argued that the two are actually in opposition to one another because palliative care comes from a ‘culture of life’ while euthanasia comes from a ‘culture of death’.

[27]  RNZ considered that the use of terminology such as ‘medication’ would not have affected listeners’ understanding of either Mr Vickers’ position or the fact that contrary views exist on the topic. It argued that Mr Vickers was merely expressing his opinion. Guideline 5a states that the accuracy standard does not apply to statements which are clearly distinguishable as analysis, comment or opinion.

[28]  Right to Life’s concerns under this standard seem to largely relate to their own preference for terminology used when discussing assisted dying. A wide variety of terms are used when discussing this issue, and use of terminology which is alternative to the complainant’s – such as what occurred during the item – is not inaccurate or misleading. We also do not think it can be said that it was misleading to say ‘medication’ when referring to something that would end a person’s life. It was reasonable and appropriate to use this meaning of ‘medication’ in a healthcare context such as this.

[29]  Regarding Mr Vickers’ statement that palliative care and assisted dying are complementary, we consider this was clearly his opinion and is therefore exempt from the requirement to be accurate. The statement began with, ‘I think...’ and was preceded by, ‘I welcome palliative care and hospice care, I think they’re tremendous’ which made it clear to listeners that Mr Vickers was expressing his own opinion rather than a statement of fact. In any event, whether palliative care and assisted dying are complementary is not an objective statement of fact which is capable of being determined by the Authority. Different experts and those on different sides of the assisted dying debate have conflicting views on this, and Mr Vickers’ perspective on the matter – as his own opinion – was permitted to be broadcast under the accuracy standard.

[30]  Accordingly we do not uphold the complaint under Standard 5.

For the above reasons the Authority does not uphold the complaint.

Signed for and on behalf of the Authority

Peter Radich
Chair
14 April 2016

Appendix

The correspondence listed below was received and considered by the Authority when it determined this complaint:
1      Right to Life’s formal complaint – 19 October 2015
2      RNZ’s response to the complaint – 26 November 2015
3      Right to Life’s referral to the Authority – 7 December 2015
4      RNZ’s response to the Authority – 10 February 2016
5      Right to Life’s final comment – 24 February 2016

¹ http://www.radionz.co.nz/national/programmes/morningreport

² See sections 5 and 14 of the New Zealand Bill of Rights Act 1990

³ Commerce Commission and TVWorks Ltd, Decision No. 2008-014

⁴ Decision No. 2015-023

⁵ As above

⁶ For further discussion of these concepts see Practice Note: Controversial Issues – Viewpoints (Balance) as a Broadcasting Standard in Television (Broadcasting Standards Authority, June 2010) and Practice Note: Controversial Issues – Viewpoints (Balance) as a Broadcasting Standard in Radio (Broadcasting Standards Authority, June 2009)

⁷ Powell and CanWest TVWorks Ltd, Decision No. 2005-125

⁸ See, for example, Dewe and TVWorks Ltd, Decision No. 2008-076

⁹ See, for example, McQueen and TVWorks Ltd, Decision No. 2012-068

¹⁰ See, for example, Right to Life NZ and MediaWorks TV Ltd, Decision No. 2015-003, McQueen and TVWorks Ltd, Decision No. 2013-081 and McQueen and TVWorks Ltd, Decision No. 2012-068

¹¹ Right to Life New Zealand and Television New Zealand Ltd, Decision No 2015-023

¹² As above, at paragraph [26]

¹³ As above, at paragraph [29]

¹⁴ As above, at paragraphs [37] to [38]

¹⁵ Bush and Television New Zealand Ltd, Decision No. 2010-036